Legal translators lacking sufficient professional experience often ask questions not geared toward improving their services to clients, but rather to satisfy their own curiosity. This often results in stiff resistance from clients, who resort to compartmentalization to protect their trade secrets. For example, questions about what the company’s business strategy is and whether the consistency of a document sent for translation with public statements about that strategy might be seen as a translator’s inappropriate prying into sensitive trade secrets.
In a fairly bizarre case I heard of, a translator tasked with translating materials for publication began asking questions about whether the client had secured copyright licenses to use the materials shown within the document. This line of questioning could be particularly alarming for a client following compartmentalization principles, as they are being asked to provide information that could later be introduced into a lawsuit to demonstrate whether the client intended to break the law. In that particular case, the articles were commentary and critique, and the copyrighted information was covered by fair use and would not be considered infringement. However, a typical client being probed about potential legal violations in this manner would no doubt feel highly uncomfortable trying to look up copyright law to answer loaded yes/no questions when the answer is essentially “it doesn’t matter—fair use does not require a license.” To avoid alarming the client, legal translators need to understand and know how to apply compartmentalization principles.
Understanding Information Compartmentalization
Trade secrets are vital assets for any business, often making the difference between success and failure for a company. Therefore, having an effective strategy for protecting them is essential. Compartmentalization is one such strategy that can be used to secure trade secrets and other confidential information by limiting access and preventing unauthorized disclosure.
Law firms and governments typically have stringent compartmentalization requirements, and the world-famous law firm Norton Rose Fulbright even advises its corporate clients to actively use compartmentalization to protect trade secrets:
“For trade secrets of particular significance, work to minimize the extent to which the entirety of the trade secret information is shared with a given employee or groups of employees. Instead, where practicable, share different parts of the trade secret information with different employees, so that few (if any) employees have access to the entire trade secret.”
Compartmentalization involves dividing information into smaller pieces or “compartments,” and then controlling access to these compartments to enhance data security and prevent unauthorized users from accessing the information. For instance, a legal translator will generally be in a different compartment from corporate lawyers. While all case facts will be deliberately shared with even temporary contract attorneys, no law firm will ever send contract attorney briefing materials to legal translators.
The idea behind compartmentalization is to limit access to sensitive information to only those individuals or organizations who have a “need to know”. Compartmentalization can also involve the use of physical barriers like locked doors and security cameras, which further restricts access to the compartments. In a typical setting, legal translators will usually be working off-site or in a separate room, physically separated from any information not directly designated for translators. Consider that White & Case, a big white shoe law firm, requires a full conflicts check as clearance before anyone is allowed to enter their staff cafeteria. This shows that even their sandwiches are literally subject to compartmentalization rules. On the other hand, Goldman Sachs has no such requirement last I checked, and they even let me enjoy a buffalo chicken sandwich there before I completed my employee drug test.
Compartmentalization can also help improve efficiency by reducing the amount of time and effort needed to access information, thereby streamlining processes and saving businesses time and money. A big reason many law firms prefer using translation agencies with project managers is that PMs can reduce the time lawyers spend answering questions, allowing them to bill more hours on things clients value and want to pay for.
Compartmentalization in Practice: the Manhattan Project
Compartmentalization was an integral part of the Manhattan Project, a top-secret research and development program during World War II focused on the development of nuclear weapons. It was also used to ensure that project progress was not hindered by security concerns and that it could move forward with utmost speed and efficiency.
Information was kept strictly on a “need to know” basis. This meant that, for example, scientists working on the project’s atomic bomb design would not be told about the progress of the uranium enrichment process. Those working on the uranium enrichment process would not be told about the progress of the atomic bomb design. This ensured that specific details would only be disclosed to those who needed to know them and that the project’s secrets were not leaked —not unlike the translator of a contract who does not know why the contract needs to be translated.
Those working on the Manhattan Project were often divided into separate teams or “cells,” each with its own specific task. These teams were then further divided into smaller sub-teams, each with its own task and working in relative isolation. Each team and sub-team was only aware of the progress of their own particular task, thus ensuring that the project’s progress was not hindered by information getting into the wrong hands.
Compartmentalization was also used in the physical security of the project’s facilities. Many of the project’s sites were located in remote areas and highly guarded, with access to these sites being strictly controlled and only those with a need-to-know allowed entry.
While compartmentalization is an effective strategy for businesses to protect their trade secrets, maintain their competitive edge, and increase their profitability, many clients tend to take this to an extreme by assuming that translators “need to know” nothing about the matter they are working on — a misconception widely rejected by translation studies researchers.
Context Clues for Legal Translators
Many documents handled by law firms are structured and organized in such a way that someone familiar with the industry can instantly grasp what is happening with the documents and the case. Indeed, most types of legal and corporate matters follow typical patterns that are easy to identify, and I’ll provide some examples of these below.
The most significant source of information about information helpful to the client is who the client is. For example, an advertising executive is likely to be promoting their product, while a litigator is generally someone pressing claims against someone else for having violated their legal rights. The same exact document could appear in requests from both the advertising executive and the litigator. The advertising executive is generally going to need a localization approach where much of the content of the advertisement is significantly changed. On the other hand, a lawyer looking into unfair competition claims regarding that specific advertisement will need a translation that closely matches the original’s message, even if that message would be an ineffective advertisement. In practice, I’ve had cases where business executives request the translation of a contract for a negotiation at the same time as pitching materials for a proposed product.
An undated and unsigned demand letter from an attorney in MSWord DOCX format is likely one that a lawyer is currently working on, and the translation provided is part of the legal matter. Generally, the parties here have a lot of information about the specific parties involved and the language being used to describe the case. In this situation, questions are particularly appropriate to help clarify the parties’ official names and align those with their identities. On the other hand, similar legal documents dated from five years ago that have been BATES stamped are typically being produced for litigation or regulatory requirements, and not an ongoing matter; identification of the parties in this case may even be a relevant and possibly disputed legal fact. In the discovery context, a fourth-year law associate is unlikely to have information about the specifics of a document that occurred before the associate even started practicing law. There may also be illegible content in the documents that needs to be marked illegible because nobody can possibly have a clue as to what the records say.
A birth, marriage, or similar certificate document related to a particular individual is usually being produced for immigration or other personal matters. This is a process European English calls “official translation,” but more misleadingly called a “certified translation” in the US. In stark contrast to the litigation context, someone requiring a document related to themselves will usually go ballistic if a translator incorrectly marks personally identifiable content. In Chinese translations, about half of all those requesting an official translation will even pre-translate the document themselves and then shop for someone to certify it. This certification practice is actually illegal since the certification falsely states that the certifying translator translated the document themselves, and the client will also typically introduce translation errors that can cause self-harm. In this case, a client would be better off providing the translator with the social context and purpose of the translation rather than shopping for a fraudulent certification. This approach is not only totally legal, but it’s also more likely to meet the client’s needs.
A privacy policy by a big technology company in digital format is also typically a work in progress. However, unlike the demand letter situation, it is not one that the company insiders will have a lot of context about. The reason for the lack of context from company insiders is that a privacy policy is typically going to be written to comply with the GDPR or its equivalent statutes in countries around the world, and lawyers writing these policies typically rely heavily on form provisions or even copying language used by other countries. In this case, information about the GDPR and related policies can be found on regulators’ websites, and asking an expensive lawyer to spend otherwise billable time on educating the translator about something readily available online is a big waste of the lawyer’s time. In fact, time-wasting by translators can be so severe that one of the big roles of translation company project managers is to restrict the flow of inquiries and information between clients and translators.
Questions Should Benefit Translation Clients
Paradoxically, while translation companies are bending over backward to prevent translators’ questions from reaching clients, Juliette Scott’s survey shows most lawyers in Europe using translators felt that translators ask too few questions. In my opinion, the best solution for clients in this case is not a gatekeeper, but rather interaction with a translator that has the skills to ask questions appropriately. In a typical law firm environment, associates ask questions of partners, who, in turn, ask questions as appropriate of clients. Therefore, essential information is shared while bad questions are shielded. A key principle here is that the questions presented to the client, asking for access to information and using client time, should benefit the client and outweigh the value of that time and trade secret risk.
Simply maintaining total silence about all sorts of relevant questions is often not a good choice. In one corporate case that went to trial, the lead attorney decided that they would be blowing up hundreds of pages of translated e-mails about business deals onto poster-sized cards for a jury. The attorney obviously didn’t mention this change of plan or that they were going to trial at all, but was very flustered that the documents were not formatted in a way that would make them easy to magnify 50x. The specific needs of the client can make a big difference in the way a particular project is completed.
On the client side, “blindfolded translator” problems can be avoided by taking a few minutes to share information with your translation team. An easy way to do so is through publicly known features of the case, such as filed complaints or news reports. Think of how the translator will help you achieve your goal—if you’ve been tasked with doing “business as usual” anti-money laundering reviews, then say that the translation will help achieve that goal. A lot of translations come back incoherent not because the translator is bad, but rather because they have no idea what you’re trying to achieve. While compartmentalization is an effective way to protect trade secrets, legal translators and legal teams need to collaborate more effectively to structure information protections in a way that benefits, rather than hinders, the client’s interests.
